Court injunction sought against Alberta government's new transgender youth health care legislation
Bill 26 would prohibit treatment such as puberty blockers, hormone therapy for those under 16
Lawyers for two LGBTQ+ advocacy organizations are in court Monday for the first step in their fight against the Alberta government's transgender law that prevents doctors from providing gender-affirming treatments, including puberty blockers and hormone therapy for youths under the age of 16.
Egale Canada and Alberta's Skipping Stone Foundation, joined by the families of five gender-diverse Alberta youths, launched the legal action against the provincial government in December after Bill 26 received royal assent. It has not yet been proclaimed.
The groups are challenging the constitutionality of the bill and seeking an injunction that would protect youth access to the health care in question while the courts decide whether the law is constitutional.
Lawyers for the applicants — the five families and two advocacy groups — made their arguments Monday. The Alberta government lawyers will get their turn on Tuesday.
Egale has called the Alberta government's actions "unprecedented" and "sweeping attack on the rights, safety and freedoms of 2SLGBTQI people in Alberta."
Kara Smyth, one of the lawyers for the applicants, told Court of King's Bench Justice Allison Kuntz that Alberta is the only province in Canada to enact such legislation.
The organization argues it is unconstitutional to deny medical care on the basis of being gender diverse and is a violation of the teens' Charter rights to security of the person and their right to equality.
In December, Alberta Premier Danielle Smith said the bill is necessary to protect children's fertility options in adulthood.
"We don't allow them to smoke, we don't allow them to do drugs, we don't allow them to drive. So we think that making a permanent decision that will affect one's fertility is an adult decision," Smith said.
But Smyth argued that forcing children who are experiencing gender dysphoria and gender incongruence to go through puberty of their sex assigned at birth has permanent effects and limits future options.
"The act does not preserve the long-term choices for gender diverse youth … it does the opposite."
Irreparable harm
The pathway to an injunction requires the applicants prove irreparable harm will be suffered should it not be granted.
Ljiljana Stanic, another lawyer for the applicants, told Justice Kuntz that there is "compelling, clear, non-speculative evidence" that withholding gender-affirming health care will cause irreparable harm through "unwanted, irreversible bodily changes."
"Many of these youths have been living in their gender identity for years," said Stanic, giving one example of Applicant 1.
Applicant 1 identifies as an 11-year-old girl and has been living as a female since she was three years old. A publication ban protects her identity.
'She will be outed'
The girl's community, including friends and teachers, have only known the child as a girl.
Without puberty blockers, the male puberty effects will take place and "she will be outed," said Stanic.
In its filed materials, the Alberta government argues the gender-affirming health care at issue in this case is not medically necessary like, for example, insulin needed for diabetes.
But Stanic pointed out that most medical care — such as scheduled surgeries, prescription acne treatment or birth control — while clinically indicated, is not considered emergency care.
"Care can be necessary or required but not an emergency," said Stanic.
Smith has previously expressed confidence that her government's bill will withstand the Charter challenge but said the notwithstanding clause is on the table as "a last resort." It's a constitutional measure which allows a government to override certain Charter rights for up to five years.
Part of Bill 26 includes a ban on gender-affirming "top" surgery for youths, a rule which is already in effect.
Bill 26 is one of three transgender laws the government seeks to implement.
The Education Amendment Act will see a requirement for parental consent for children under 16 to change their names or pronouns at school, and for parental opt-in for their kids to be taught lessons on sexuality, sexual orientation and gender identity.
The Fairness and Safety in Sports act — banning transgender athletes from competing in female mature sports — is also set to become law. As part of the new legislation, sports organizations will also be required to report eligibility complaints to the government.
ABOUT THE AUTHOR
